JUDGMENT
Page, J.
1. This is an appeal from an order of the learned Subordinate Judge of Cachar remanding for re-trial a suit heard by the learned Munsif of Silchar. At the hearing of the appeal a preliminary objection was taken by the respondents that no appeal lay from the order of remand. It appears that after the hearing of the suit had been concluded the defendant raised the question whether a large number of persons, more than twenty in number represented by the plaintiff in the suit, were not members of an unregistered company within Section 4, Indian Companies Act. During the hearing of the suit no issue was raised with respect to this question although a few casual questions were addressed to the plaintiff on the subject and the learned Subordinate Judge took the view that the issue, as to whether the persons represented by the plaintiff were members of an unregistered company formed for the purpose of carrying on a business for gain, ought further to be investigated. Accordingly, the learned Subordinate Judge ordered that
As the decision of the case mostly depends upon the question whether it is an association or company or partnership consisting of more than 20 members, acquiring lands for the purpose of gain, and as no specific objection was taken in the defendants written statement, and no issue was framed, and evidence was not fully gone into, the case must go back to the lower Court for the determination of the question. I, therefore, frame the following issue : “Whether the plaintiff and 28 persons as mentioned in Schedule 1 of the plaint formed a company or association or partnership for acquiring lands for the purpose of gain, and if so, whether the suit is maintainable under Section 4(2), Companies Act. The Court below will allow the parties to give evidence on the point and hear their arguments, and if it is satisfied that they have formed a company or association or partnership for acquiring lands for the purpose of gain, and it was not registered under the Companies Act, the suit will be dismissed. But if the case does not come within the purview of Section 4(2), Indian Companies Act, the suit will be decided on the merits on the evidence already adduced by the parties. He will consider the effect of the defendants’ purchase by kobala (Ex. B), i.e. whether they have purchased 1 bigha of plots Nos. 206, 207 or 208 or less. The appeal is, therefore, allowed. The decree of the lower Court is set aside, and the suit is remanded to the lower Court for disposal according to the directions given above. Costs will abide the result.
2. It is against this order that the present appeal is brought.
3. In support of the preliminary objection the learned vakil for the respondents contended that no appeal lay from the order of remand as made, because the learned Subordinate Judge had no jurisdiction to make the order under Order 41, Rule 23. It is abundantly clear that the order of remand as made was passed without jurisdiction, because the learned Munsif who tried the case did not determine the case upon a preliminary issue, but heard and decided the suit upon the merits. The condition precedent, therefore, to the exercise of the power of remand with which the Court is invested under Order 41, Rule 23, was not fulfilled, and the order of remand as made could not validly have been passed under Rule 23, and was ultra vires the Court that passed it. The result is that no appeal lies from the order as made, for, under Order 43, (1)(u) an appeal only lies if the order of remand has been passed under Order 41, Rule 23.
4. Again, the order for remand as made, in my opinion, did not itself finally, determine all or any of the matters in controversy between the parties and it was not a decree within Section 2, Civil P.C., therefore, no appeal lay from this order of remand as being a decree within Section 100, Civil P.C. The opinion that I have stated, namely, that the lower appellate Court possessed no jurisdiction to pass the order as made under Order 41, Rule 23, or otherwise, is in consonance with the view expressed upon this subject by Jenkins, C.J., and Chatterjea, J., in Mani Mohan Mandal v. Ramtaran Mandal [1916] 43 Cal. 148, by Walmsley and Huda, JJ., in Mohendra Nath Chakraburtty v. Ramtaran Bandapadhya [1920] 23 C.W.N. 1049 and by Greaves and B.B. Ghose, JJ., in Radha Krishna Saha v. Kamal Kamini Debya A.I.R. 1922 Cal. 456. The order now before the Court having been made without jurisdiction, and being one from which no appeal lies, in my opinion, this Court has jurisdiction to treat the memorandum of appeal as an application to the Court to revise the order under Section 115, Civil P.C., Baikunta Nath v. Sita Nath [1911] 38 Cal. 421, Mohini Nohan Roy v. Ramdas Paramhansa , Merali Visram v. Sheriff Devji [1912] 36 Bom. 105, and Venkata Ramayya v. Veeraswamigadu [1918] 41 Mad. 554. I am clearly of opinion that in the exercise of the powers this Court possesses under Section 115, Civil P.C., the Court ought to set aside the order of remand that has been passed in this case as having been made without jurisdiction. It was urged by the learned vakil for the appellant that, inasmuch as a Court to which an appeal lies has jurisdiction to remand a case in the exercise of its inherent jurisdiction in that behalf Abdul Karim v. Allahabad Bank Ltd. [1917] 44 Cal. 929, this Court ought to treat this order as having been made in the exercise of the inherent powers possessed by the learned Subordinate Judge. I am not disposed to hold that the learned Subordinate Judge in the proper and exceptional circumstances in which the inherent power of the Court may be invoked would not have jurisdiction to order a suit to be remanded, indeed, I should insist that he had; but it is now well settled that a Court ought not to make use of the inherent jurisdiction with which it is invested in circumstances to which the provisions of the Civil Procedure Code are applicable : Abdul Karim Abu Ahmed Khan Ghaznavi v. Allahabad Bank Ltd. [1917] 44 Cal. 929 and Mani Mohan Mandal v. Ramtaran Mandal [1916] 43 Cal. 148.
5. The result is that the order to which exception has been taken will be set aside, and the learned Subordinate Judge must proceed to hear the appeal according to law. In making this order in a general form we do so because it is undesirable that we should dictate to the learned Subordinate Judge the course that he should follow with regard to the appeal that has been preferred to him. It is enough to say that whatever order he elects to pass most be one that conforms to the law.
6. I am, of course, aware of the decisions in Baseemati Debi v. Taritbasani Dassi [1920] 31 C.L.J. 354, Radha Krishna Saha v. Kamal Kamini Debya A.I.R. 1922 Cal. 456, Bhairab Chandra Dutta v. Kali Kumar Dutta A.I.R. 1923 Cal. 606, Kayem Biswas v. Bahadur Khan , Gokul Prasad v. Ram Kumar A.I.R. 1922 All. 254, Kulsoomunnissa v. Ram Prashad A.I.R. 1922 All. 226, contra, Mohendra Nath Chakraburtty v. Ramtaran Bandapadhya [1920] 23 C.W.N. 1049 in which it has been held that although the appellate Court which ordered the remand had no jurisdiction to pass the order as made under Rule 23, nevertheless, if the learned Judge passing the order of remand without jurisdiction in that behalf purported to be acting under Order 41, Rule 23, he must be taken to have remanded the case under Order 41, Rule 23, and that an appeal from such an order would lie. The later cases other than Mohendra Nath Chakraburtty’s case [1920] 23 C.W.N. 1049 decided by Walmsley and Huda, JJ., merely followed the decision in Baseemati Debi’s case [1920] 31 C.L.J. 354, but, with all due deference to the learned Judges who were parties to these decisions, I confess that I find myself unable to assent to the reasoning upon which they were based. It is expressly provided under Section 104, Civil P.C. and Order 43(1), that no appeal shall lie from an order of remand under Order 41, unless the order was made under Rule 23. I apprehend that the meaning and effect of these provisions is that unless the order is one that the Court had jurisdiction to make under Rule 23, the order is not subject to appeal, and the proper mode of challenging its validity is to file an application for revision under Section 115. Of course, if the order of remand, as made, is a decree within Section 2 of the Code, an appeal will lie from it, but the appeal will not lie from such an order because the Court purported to make the order under Rule 23, but because it is provided elsewhere in the Code that from such a decree an appeal shall lie. But where, as in the present case, the order is not a decree, and is ultra vires, because the circumstances did not exist in which alone the Court would have had jurisdiction to make an order under Rule 23, under what principle of law can it be held that the order must be deemed to have been made under Rule 23, merely because the Court when passing the order “purported” to be acting under Rule 23?
7. If it is contended that the order must be so regarded because otherwise an appeal will not lie, and injustice might take place, with all respect, that is to legislate and not to administer the law. I invited the learned vakil for the appellant if he could suggest any legal basis to support the view that an order which was not and could not have been made under Rule 23, must be treated as having been made under Rule 23. No answer was forthcoming and no satisfactory answer, I think, can be found. In my opinion, it never was intended or contemplated that whether an order of remand was appealable or not should depend not on whether the conditions laid down by Order 41, Rule 23, had been complied with, but whether the learned Judge purported or did not purport to make the order under Rule 23. It may be that on some future occasion these cases will be further considered, but for the purpose of deciding the present case it is enough to say that, in my opinion, the learned Subordinate Judge did not purport to act under Order 41, Rule 23. To my mind it is reasonably clear that he intended, and it may be also that he “purported” to act under Order 41, Rule 25, for the sole issue which he thought remained for consideration was the issue whether in fact the persons represented by the plaintiff formed an unregistered company or not; but instead of sending that issue to be determined by the trial Court and retaining the appeal upon his own file, he erroneously and without jurisdiction remanded the suit for disposal by the trial Court. In these circumstances Baseemati Debi’s case [1920] 31 C.L.J. 354 and the later decisions that followed that case do not apply.
8. Although the appellant in effect has succeeded he has succeeded notwithstanding that he brought an appeal instead of making an application under Section 115, and in the circumstances we make no order as to costs.
Graham, J.
9. The order appealed against is one of those anomalous orders which cannot be brought within the purview of either Rule 23, or Rule 25, Order 41, Civil P.C., It is quite clear that if; cannot come under Rule 23 because the suit had not been disposed of on a preliminary point as all the issues framed by the Munsif were decided. If it does not come under Rule 23, Order 41, then there is no appeal against the order. Nor does it appear to come under Rule 25 of Order 41 since the Court had no jurisdiction if it proceeded under that rule to remand the case in the manner in which it has done but should have retailed the case on its own file. It appears to me, however, that probably what the learned Subordinate Judge intended to do was to act under Rule 25, but instead of carrying out the procedure laid down in that rule he, through some oversight, adopted the procedure laid down in Rule 23. It amounts, therefore, to this that the Court made an order which it had no jurisdiction under the Code to make. It has been urged also before us that the order should be deemed to have been an order made under the inherent power of the Court under Section 151, Civil P.C., and that in that case an appeal would lie. As to whether an appeal would lie in those circumstances the authorities are conflicting. But it seems to me that where the Code contains specific provisions dealing with a particular matter the Court ought not to invoke the aid of Section 151.
10. Under the particular circumstances of this case as no appeal lies the proper course for us to adopt is, it seems to me, to treat the memorandum of appeal as an application for revision to set aside the order of the learned Subordinate Judge as being made without jurisdiction, and to send the case back to him in order that he may dispose of it according to law as my learned brother has suggested.
